Clause 99 — Admissibility of Hearsay Evidence

Criminal Justice Bill – in the House of Commons at 3:15 pm on 2 April 2003.

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Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs) 3:15, 2 April 2003

I beg to move amendment No. 146, in page 60, line 6, leave out 'admissible' and insert 'not to be admitted'.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss the following amendments:

No. 147, in page 60, line 6, leave out 'if, but only if' and insert 'unless'.

No. 148, in page 60, line 9, at end insert 'or'.

No. 149, in page 60, line 10, leave out from 'admissible' to end of line 13 and insert

', and the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admitted.'.

No. 150, in page 60, line 15, leave out '(d)' and insert '(a) or (b)'.

No. 151, in page 60, line 31, at end insert

'and the court shall in no event admit such a statement if it is of the opinion that, if the statement were admitted, any conviction of the defendant would as a result be based wholly or substantially on statements not made in oral evidence in the proceedings'.

No. 154, in page 64, line 29, leave out clause 104.

No. 155, in page 65, line 14 [Clause 105], leave out subsections (4) to (8).

No. 121, in page 65, line 42, leave out clause 106.

No. 156, in page 65, line 44 [Clause 106], leave out from 'deceased)"' to end of line 44 and insert

'only a statement by a person to whom the original statement was made is capable of admission in criminal proceedings as evidence of a matter stated in the original statement (so that a statement by B, but not A, may be admitted as evidence of the fact that C shot the deceased).'.

No. 157, in page 66, line 1 [Clause 106], after 'statement', insert

'not made in oral evidence in the proceedings'.

No. 158, in page 66, line 7 [Clause 106], leave out subsection (3).

No. 159, in page 66, line 15 [Clause 107], leave out '104 or'.

No. 160, in page 66, line 23 [Clause 108], leave out ', 104'.

No. 161, in page 68, line 23 [Clause 111], at end insert

'(and, where the statement is tendered by the defence, of the impact of its exclusion on the fairness of the trial)'.

No. 162, in page 71, line 6 [Clause 116], leave out from 'unavailable)' to end of line 10.

No. 163, in page 194, line 17 [Schedule 6], leave out from 'unavailable)' to end of line 21.

No. 164, in page 194, line 29 [Schedule 6], leave out from 'unavailable)' to end of line 33.

No. 165, in page 194, line 41 [Schedule 6], leave out from 'unavailable)' to end of line 45.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I shall speak not only to our amendments, but to amendment No. 121, which was tabled by Mr. Letwin and other Conservative Members. It might be helpful if I tell hon. Members that we believe the matter to be of importance and that, unless the Government are minded to make a significant movement in our direction, we shall press amendment No. 146 to a Division and encourage hon. Members to support us. If Mr. Grieve is minded to press amendment No. 121 to a Division, we shall support him and his colleagues.

This group of amendments is the first on the subject of fair trials. There is a lot of discussion in the press about fair trials abroad, but the amendments relate to fair trials at home—they relate to hearsay evidence. Later, we shall have an even more important, but equally central, debate about whether evidence of bad character may be brought into play and adduced during a trial. We believe that a common thread runs between this debate and that debate.

There are differences between the Liberal Democrat view, the Government's current view—it was not their position when they were in opposition—and the Conservative party's general view. In the past, justice was seen to be done in criminal trials because the prosecution had to make its case by bringing evidence and, unless that evidence was accepted, allowing that evidence to be tested by defence cross-examination. Trials were supposed to be held on the basis of evidence relating only to the charges before the court, not to the defendant's pre-history. The debates on hearsay evidence and evidence of bad character show that the Government's position has moved and—I am generalising a little—their current position is, "The more that can be put before a court, the better." They believe that it should be presumed that all evidence that might be relevant should be put before the court so that the judge or jury may reach a decision.

That is a proper and normal rule in the civil courts, in which people's liberty and associated punishments are not an issue and decisions are made about which party is liable for a specific activity. The civil courts weigh up evidence in favour and against each argument and traditionally reach a view on the balance of evidence. The same has never been true of the criminal courts, where the prosecution must prove a case beyond reasonable doubt rather than using a test of the balance of evidence. Society has rightly decided that convicting people wrongly is such a severe interference with their rights and liberties that a high hurdle must be negotiated before they are convicted. That is why the courts have adopted from common law—not from statute—rules on evidence that may be admitted, and Parliament has developed them.

My hon. Friend Mr. Heath and I said many times in Committee that the rules of evidence are sometimes too complex. They need to be tidied up to make them more straightforward. We put on record the fact that codifying, clarifying and simplifying the rules of evidence is a good thing. We support codifying the rules of evidence, including hearsay evidence, but we do not support changing the rules of evidence to reflect the Government's starting point in clause 99. Under the clause, second or third-hand hearsay evidence will ordinarily be admissible unless exceptions apply. Such evidence is distinct from that heard from somebody who tells what they have seen.

We believe that second or third-hand evidence should not normally be admissible unless there is a good reason for it to be admitted. Our belief is based on a simple proposition: if a person repeats what has been said or what somebody else said was said, the accuracy of the original statement cannot be checked. We all know how statements change as they pass down lines of communication. Convicting on the basis of the evidence of someone who is not in court and cannot therefore be seen and heard and whose character cannot be judged by the judge or the jury means asking the court to place reliability on the evidence that makes it potentially equal to that of people who are in court and can be seen and heard. There is thus a danger of weighting the case against the defendant in a way that would not happen if the people whose evidence is cited had to be present.

We support the proposal that hearsay evidence should continue to be inadmissible unless specific conditions are fulfilled. We wish that the Government had kept to the view that the Law Commission recommended to them—it undertook a considerable piece of work and reported in 1997. It produced a draft Bill and 50 recommendations, and continued to support the traditional view that hearsay evidence would not generally be admissible, with exceptions.

I know the arguments for the opposite view because we have held discussions with the Under-Secretary and his colleagues, for which we are grateful. It is argued that if people believe in and trust the jury system, they must trust members of the jury to listen to everything and reach a fair judgment. That is superficially appealing, but there is a weakness in the argument. Nobody has ever claimed that the jury system is perfect. We have always argued that it is the best system, and that lay magistrates constitute the best system for the lower courts. The court is representative of the general public, and juries and lay magistrates can thus listen to the facts without bringing to the case the lethargy that can derive from sitting in court day in, day out. Lay magistrates and especially members of juries bring the experiences of their day-to-day lives to the court, listen to the case and judge on the facts. However, like everyone else, they have prejudices.

It is important not to include hearsay evidence because, although trial by jury is the best system, if jury members are given information that is less valuable, less able to be tested or irrelevant to the offence with which the person is charged, they may be improperly influenced and judge on the basis of bad evidence or evidence that they cannot test. That applies especially to evidence of bad character, which we shall consider later. We therefore trust the jury, but it should only be given evidence that it can properly examine.

We accept that the hearsay rules constitute some of the most complex and confusing parts of criminal law and that they need to be tidied up. We also accept that the Government want to ensure that, if possible, less time is spent on complex arguments about evidence on the conduct of cases. We support that proposal. If we can reduce the time it takes for cases to get to and through court by removing arcane and often prolonged evidence about minutiae, so much the better. I have said publicly to the Home Secretary that we have signed up to trying to codify that aspect of the law to make it simpler and to avoid the necessity for people to go from one part of criminal law to another. Reform is therefore acceptable to us. We are not being conservative or stick-in-the-mud, nor are we defending practices that do not work.

We are encouraged in our belief that our view is correct by the Select Committee on Home Affairs, which considered the matter and decided that it preferred the Law Commission's proposals to Lord Justice Auld's later proposals and recommendations. The Auld report was the immediate predecessor of the draft White Paper. We note that the Joint Committee on Human Rights is worried about whether, in some cases, a fair trial could be obtained and whether article 6 of the European convention on human rights would be breached. It is worried about trials in which convictions are based only on hearsay evidence. According to its report, no such case has gone all the way to the Strasbourg court. We are therefore slightly in the dark about the convention's effect.

All the organisations that have been consulted and represent regular practitioners have expressed anxiety about the proposals. They include the Legal Action Group, the Bar Council, Liberty, Justice—I declare that I am a member of its executive council—and the Criminal Bar Association. There is therefore significant concern; we are not simply making a party political point.

I want briefly to point out why the proposal is defective and to outline our suggestions for better legislation. The group of amendments is large and I do not therefore propose to go through it in detail. I appreciate that others wish to speak and that the debate is time limited.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway 3:30, 2 April 2003

Before the hon. Gentleman moves on to that matter, he was talking about convictions that are wrongly obtained as a result of hearsay evidence. Does he understand—as I do—that the provisions relate equally to the defence and to the prosecution, so that both will be able to take advantage of them?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I believe that that is right, and it could be argued that the proposed changes will produce equity of arms. I accept the hon. and learned Gentleman's point. I understand why the Government are concerned to ensure more convictions of the guilty: we all say amen to that. The issue before us, which motivates the Liberal Democrats' approach, is whether the drive to obtain that result will fail or, if it succeeds, whether it will do so at the expense of more convictions of the innocent. Sadly, there are already more than enough wrongful convictions in the justice system of England and Wales—the Bill does not affect Scotland—and we should be careful not to do anything that would increase the number of wrongful convictions.

Amendment No. 146 would return clause 99 to what it should be. As drafted, it states:

"In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated", and the qualifications are then set out—

"if, but only if . . . any provision . . . makes it admissible, . . . any rule of law preserved by section 103 makes it admissible, . . . all parties . . . agree to it being admissible", and a fourth test follows. The amendment would turn that round, so the clause would read simply:

"In criminal proceedings a statement not made in oral evidence in the proceedings is not to be admitted as evidence of any matter stated"— unless the subsequent conditions are met. It starts with the presumption that hearsay evidence will not be included unless it passes certain tests.

Clause 99 includes a judicial oversight provision, whereby the court has to be satisfied that

"despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible."

One problem that applies here and to later provisions on bad character is that when a judge hearing a case is given significant extra powers, it is bound to lead to greater variability—and therefore subjectivity—of decision on what counts as admissible evidence. If the rules are codified in statute, clear and predetermined, everyone knows where they stand. However, it is much more difficult to be certain about the consistency of justice if judges are given much greater flexibility to decide whether admitting evidence would be contrary to the interests of justice in a particular case.

Amendment No. 151 would add a qualification at the end of the long list of considerations—(a) to (i) in clause 99(2)—that the courts should take into account when deciding whether to include hearsay evidence—for example, how probative or important a statement is, or according to

"the circumstances in which the statement was made" or

"how reliable the maker of the statement appears to be", and so forth. That is fine as far as it goes, but those conditions are no substitute for having someone in court to ask them about what they said, which can be seen and heard by the jury. That is why the amendment would include at the end of the list the additional words:

"and the court shall in no event admit such a statement if it is of the opinion that, if the statement were admitted, any conviction of the defendant would as a result be based wholly or substantially on statements not made in oral evidence in the proceedings".

We are keen to ensure that we bring evidence to court—other than when it is agreed—and that people are not convicted on hearsay evidence rather than on direct evidence.

Photo of Vera Baird Vera Baird Labour, Redcar

The hon. Gentleman complained a moment ago that one problem was that the provisions would give more discretion to the judges. Amendment No. 151 would require a judge to decide what would be substantially the basis for a conviction if he admitted a further statement. That would be a very subjective judgment. What does the hon. Gentleman suggest the word "substantially" means in the context of the amendment?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The hon. and learned Lady makes two points. First, of course the amendment involves judicial discretion, as is always the case when a judge determines matters of procedure. The amendment would improve the list that the Government give. If we are to have judicial discretion, for example, the amendment would ensure that that discretion does not allow people to be convicted—"wholly or substantially"—on evidence other than what has been agreed, and which is not before the court. The hon. and learned Lady knows better than I that a huge amount of evidence before courts is agreed by both sides beforehand. Vast numbers of statements are accepted without dispute.

Secondly, we may need to revisit the terms "wholly" and "substantially". "Wholly" is self-explanatory, but the word "substantially" is used regularly in criminal justice legislation to mean "nearly wholly". We could come up with proper definitions, but the point is that we must be careful that we do not start convicting people on the basis of evidence that is not substantially evidence before the court. I am sure that the hon. and learned Lady will agree with that, as the Joint Committee on Human Rights made the same point.

Mr. Grieve recollected vividly in Standing Committee a debate on emergency powers for Northern Ireland. There was a possibility that the law that was passed—happily, it has never been implemented—could have people convicted on hearsay evidence alone for terrible terrorist activities in the past. For example, that hearsay evidence could include what a police officer or member of the armed services had heard from members of the intelligence services. We can understand why people would not be keen for members of the intelligence services to be brought before the court, but one is getting into very dangerous territory if one allows people to relate second hand the basis for their belief that a person is guilty.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I largely agree with the broad thrust of the hon. Gentleman's argument, but, in connection with amendment No. 151, would it not be better to allow the judge to make that decision at the end of the prosecution case, rather than before he knows what the whole of the prosecution case is? Not until the end of the prosecution case will the judge know whether a piece of evidence constitutes a substantial part of the case, or the whole of it.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I accept that. Later, we will debate the stage at which applications can be made for a case to be dismissed. The hon. and learned Gentleman makes a valid point, with which our amendment is not inconsistent. Certainly, the matter should wait until the whole case has been seen, when, to put the matter bluntly, it will be possible to know how much evidence is direct, and how much indirect.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I do not want to push at an open door, but the problem with amendment No. 151 is that it states that

"the court shall in no event admit such a statement".

It has to be admitted so that the judge can view it in the overall context of the whole of the prosecution case. That is the short point that I was making.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Amendment No. 151 seeks to deal with the Government's reversal of the proposition that we want to be the starting proposition. If we could go back to making the law say that hearsay evidence cannot be admitted except in certain specified cases, such a statement would be admitted at the time in the prosecution case when it fell to be admitted and the judge could then make an evaluation at half time, I would be happy with that and would withdraw amendment No. 151, because clause 99 would have been recast.

The final matter of significance, the multiple hearsay provision, is covered by amendment No. 106. I do not want to steal the thunder of the hon. Member for Beaconsfield, but the proposal is that there should be a provision to allow what might be called "double hearsay". Put simply, that amounts to A saying that B said that C shot the deceased. That is far removed from hearing evidence based on direct sight or sound in the court.

Although we have tabled amendments to the clause, we would support its removal, as I said. Multiple hearsay evidence is very thin evidence indeed. It is bad enough when someone says, "Bill Jones told me that they saw them breaking into the shop". If one never hears Bill Jones tell his story—if someone says Bill Jones heard that Amin Patel said last Tuesday that someone was breaking into the shop—it is seriously risky. We must be careful not to go down what is a dangerous slippery slope even with certain protections.

The law ought to be codified and tidied up. The Law Commission was right: the presumption should be that hearsay evidence is not admissible. The clause does not provide for that, which is why we tabled the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 3:45, 2 April 2003

This group contains a raft of amendments that touch on hearsay, which is one area that I have found extremely difficult.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The Minister helpfully indicates that he has too. When we dealt with the matter in Committee we found that it was one of those issues on which there was general agreement at the outset on the broad principle and everyone felt that the hearsay rules ought to be tidied up. The more one goes into the details of what is proposed, the more one has anxieties and reservations and tries to dismiss them from one's mind. I say that as a preliminary comment as I can assure the Minister that I am convinced that tidying up the rules on hearsay would be beneficial. Considering the totality of what is being proposed in this chapter, with which the various amendments tabled by Simon Hughes and the amendment that I have tabled deal, I still have serious anxieties.

First, on the generality, which the hon. Gentleman mentioned, there appears to be a measure of agreement that hearsay evidence should be made more readily admissible. He rightly highlighted when speaking to his first amendment, which may be symbolic, that the wording makes hearsay evidence admissible whereas he would like to preserve the basic rule that it is not to be admitted except in certain circumstances. He may put that amendment to the vote and I shall support him if he does, not because I think that it makes a huge difference to the drafting of this part of the Bill, but because it gets the argument and discussion off to the right start. If that is the amendment that he chooses to put to the vote from this group, I will back him on it.

I shall focus, however, on the hon. Gentleman's amendment No. 154 to clause 104, which deals with "inconsistent statements", and is an amendment that has concerned me particularly. This is an example of an area where I have serious doubts about whether the House is doing the right thing. I shall explain why, although we did discuss this in Committee.

As the Minister knows, the present position is that if someone goes into the witness box and gives evidence that is inconsistent with a previous statement that he or she has made, that statement can be put to them—indeed, it can be put to them by the counsel who has called them, if necessary. The purpose of doing so is to destroy the witness's credibility and reduce it to zero. Having done so, no weight can be attached to what they have said in the witness box or previously. The witness is taken out of the picture in terms of the credibility of their evidence.

In clause 104, the Government have chosen to alter that principle completely. They have chosen to embark on a particular route, saying that, where there is a previous inconsistent statement, irrespective of who made it, that statement can be put to the witness to comment on, agree with or denounce. However, if a denunciation takes place, the court and jury can then be presented with the hotchpotch mixture of what the witness says in the witness box and maintains is true, and what the witness said previously in a statement to the police and claimed, at the time, was true. The jury can be invited by one side, the other side, or both, to choose which version they prefer and to treat that version as the truth. If they are satisfied that one version is the truth, they can, if necessary, convict a person on that evidence.

Taking that route may be tempting. In Committee, we discussed examples of witnesses who make detailed statements to the police that incriminate another person and lead to a charge being brought because the police investigation into the statement suggests that it is credible. The case then goes to court and, for reasons that often never emerge—perhaps to do with fear, intimidation, a change of mind, or the relationship with the defendant in the dock—the witness refuses to say anything or gives a totally different version of events, exculpating the defendant.

I am the first to accept that, in such circumstances, there is a great temptation to accept what clause 104 provides for and say, "Well, the previous statement should be allowed to stand as evidence, because that way we will get the conviction when the witness fails to come up to proof in the witness box." However, the more I have reflected on clause 104—and I reflected on it after the Committee stage as well as during it—the more troubled I have become by the principles that underpin it. The principle of our system of justice is that we invite juries to convict people if they are satisfied that they are sure that those people are guilty. If a person comes before a court and says—often quite articulately in my experience—that their previous statement was a load of rubbish and that what they are now saying is true, it is a bold person who can claim to be able to establish, when a witness has discredited himself or herself so thoroughly in that way, that any part of the statement should be accepted. The temptation is there, but the previous rule existed precisely because it was felt that that temptation could all too easily lead to a person being wrongly convicted. Perhaps the truth was that the original denunciator had lied to the police in a complex fashion because they had a grudge against the person, but had since changed their mind. We have all seen that happen in the witness box, yet we are about to establish a principle that allows someone to be convicted on such evidence.

I remain deeply troubled by this change in our legal principles. I wonder what advantage will accrue from it. Apart from anything else, I would have thought that any sensible judge, when faced with this situation and desirous of allowing justice to be done, would have to be overwhelmingly cautious in any summing up that he gave to the jury about the enormous dangers of convicting on such evidence. The issue bothers me, and I see that my hon. and learned Friend Mr. Garnier is nodding; he has experience of sitting as a recorder, as others in this Chamber may have. We should not be taking this route.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

Much of what the hon. Gentleman says is right, but does he not accept that there is a contrary position here? Not infrequently, when witnesses first make their statements to the police, they do not inculpate the defendant. On the contrary, they do precisely the reverse. It is only after a period of time that they then make the statement on which a conviction or an indictment is based. If this clause becomes law, the previous exculpatory statement will be evidence of the facts in that exculpatory statement. Does the hon. Gentleman not accept that that, far from being a chain on liberty, will be a ball and chain for prosecutions for a great deal of time to come? If the intention was to remove civil liberties by means of this clause, it is, as with much else in this part of this Bill, a spectacular own goal.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I always listen with care to what Mr. Marshall-Andrews says. We had a discussion about this a moment ago with Vera Baird. I concede that the matter can cut both ways in that it can be to the advantage of a defendant or of a prosecutor. However, I will say to the hon. and learned Gentleman—I dare say that he will rise to provide examples from his own practice—that if somebody gives a statement that is exculpatory, then subsequently appears in the witness box and gives an incriminating statement, as matters stand the discrediting of that witness will remove any ability of the prosecutor to rely on his evidence thereafter. In view of the fact that the burden is on the prosecution to prove its case, not on the defendant to prove his innocence, the defendant is pretty well protected by the principle that a prosecution witness can be discredited in that way and their evidence reduced to nothing.

I stand by my principles. Although I accept what the hon. and learned Gentleman says, I apply my own criterion that the advantage cuts both ways. I would not wish a witness who incriminates somebody in the witness box but has previously given an exculpatory statement to be in any better position in terms of his impact on the trial than if it were the other way round. Whichever situation arises, that witness should be disregarded. In my experience, however, if it is a prosecution witness who is destroyed in that way, the prosecution's case tends to go down the plughole unless there is some overwhelming and compelling other evidence against the defendant.

Photo of Vera Baird Vera Baird Labour, Redcar

The hon. Gentleman will be familiar, as I am, with the position whereby a young witness can now give evidence by having a video made of what they say to police officers outside court. That would be hearsay were it not for a specific statutory provision admitting it as the evidence-in-chief of a young person. I imagine that the hon. Gentleman shares my anxiety that it should be possible for far more witness evidence to be taken by video at the earliest possible stage. That will all be hearsay unless the rule mooted by the Government is passed, and what he suggests would stand in the way of that.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I may have misunderstood what the hon. and learned Lady said. If clause 104 on inconsistent statements were to be removed, I do not see how that would in any way prevent what she is arguing for, which is the greater admissibility of evidence that is obtained outside the court setting. I was focusing on the matter only in terms of there being inconsistency between the one and the other. If I misunderstood her, I will gladly give way to her again.

Photo of Vera Baird Vera Baird Labour, Redcar

I think that I am looking at a slightly fuller picture. If the hon. Gentleman's problem is that he does not want to admit as evidence statements that are made out of court nearer the time, his obstacle would definitely be in the way of an expanded use of video evidence. That would inevitably mean that evidence taken on film soon after the event—highly probative and valuable material—could not be admitted because it was technically hearsay.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 4:00, 2 April 2003

I understand what the hon. and learned Lady says but that was not the point that I was trying to make. I am not against such evidence being admitted. Indeed, although I have expressed reservations about the whole picture as regards hearsay, I tried to focus on the details while admitting that I found the issue complicated—as does the Minister. I do not suggest that such evidence should not be admitted. I was focusing on the narrow issue: where there are two completely inconsistent statements—a previously made statement, whether on video or given to the police, and a subsequent statement, made when a witness appears in the witness box, that is wholly different and, indeed, inconsistent with the first one. It is not a question of saying, "I can't remember what I said on the earlier occasion", but of saying, "What I said on the earlier occasion is not the truth."

In those circumstances, clause 104 allows the prosecutor or the defence to say to the jury at the end, "I invite you to prefer what was said in the earlier inconsistent statement as being the truth," while the current rule is that the witness would have been so discredited that the judge would have to tell the jury to disregard that evidence completely. That is the point that troubles me.

Photo of Vera Baird Vera Baird Labour, Redcar

I think that we are talking about the same thing. In fact, there will be only one version, will there not, if rules come into force to allow for wider videoing of evidence outside court from, for example, victims of rape or domestic violence and others. The opportunity for an inconsistent version will come only during cross-examination, will it not? The hon. Gentleman might have a different point if equal evidential value is to be given to a statement taken outside court and evidence given in court. What happens in a situation where a witness makes a statement that something happened on Monday but, in the witness box, says that it happened on Tuesday? Surely, that would be the real problem.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I was not necessarily thinking of examples such as that. We have all seen cases where, in court, witnesses change their recollection of events, which may be for completely innocent reasons. However, that is rather different from what I consider an inconsistent statement, which is when a witness says, "I saw the defendant hit his wife over the head with a pickaxe handle," but when he is in the witness box, he says, "The defendant was nowhere near the house at the time, he was actually down the pub with me". Currently, that would be the end of his evidence; it disappears from the picture. He is discredited and cross-examined and, unless there is other evidence, it may be the end of the case. However, under clause 104, that would not be the end of the case. The prosecutor would invite the jury to convict on the basis of the earlier statement. As an issue of principle, and mindful of the comments of the hon. and learned Member for Medway, that bothers me.

I am conscious that we do not have much time left to debate this group of amendments, so I want to turn to amendment No. 121, which relates to multiple hearsay. I have read and re-read what was said in Committee on this subject by the Under-Secretary Mr. Wills, yet I remain concerned about this part of the Bill. It has been said that multiple hearsay can go on for virtually as many times as one likes. It is different in quality and nature from hearsay. For example, it is not: "Somebody has told me that something happened", but "Somebody has told me that somebody told him that something happened".

Although the provisions are hedged around with a number of restrictions, some of which I do not find easy to follow, it seems that at least part of clause 106 would enable some extremely strange things to happen. For example, it would enable a statement to be read out in court that an individual had been told by another person that the character and reputation of the defendant were that he was a villain in the area where he lived. The basis for reading out such a statement would be the unavailability of the witness who was to be called to give that evidence. The Minister will correct me if I have got that wrong, but that is my reading of the clause. If I may use a colloquialism, it is bonkers. I do not see what possible weight or credibility such evidence could have or what use it would serve. In fact, a great deal of prejudice could accrue because the evidence could never be challenged. Material would be put in front of a jury that was infinitely capable of misleading and had no probative value at all.

In saying that, I am conscious that clause 106 also covers provisions relating to business documents. The Minister may remember—I do not recall whether he was present—that in Committee I said that I was extremely satisfied with the way in which business documents are admitted as hearsay evidence in criminal cases. I regularly use that principle under current law and I am satisfied that it works, so I assure the Minister that that is not what I am aiming it. However, the clause goes much further. I have not sought to redraft the clause, because redrafting it is beyond me, but I am convinced that the example I have given—if it is correct—is one that I am not prepared to tolerate arising under the Bill. If we go down that road, we will expose ourselves to cases in which material is placed in front of juries that can never be challenged and is highly prejudicial, deeply tendentious and unreliable, because it has passed through a number of persons or statements before it appears in front of the jury. However, I specifically exclude business documents from those comments.

Time has passed. I hope that the Minister is able to respond, but I am minded to ask the House to divide on the amendment.

Photo of Vera Baird Vera Baird Labour, Redcar

The hon. Gentleman has given an example of a case in which I should have thought it intensely unlikely that anyone would try to rely on multiple hearsay about someone's reputation, so perhaps it is not a proper way to test the efficacy of the provision. I have thought of an example in which multiple hearsay might be advantageous. It closely resembles a case that I put to him in Committee, but takes it one step further.

The hon. Gentleman will remember my describing a case in which someone is killed by having his throat cut and with his dying breath says to Simon Hughes, "Dominic Grieve did it." I arrive on the scene a second later, ask the hon. Gentleman, "Who did he say did it?" and he replies, "Dominic Grieve." Then something happens—may it not—to the hon. Member for Southwark, North and Bermondsey. The likelihood of the deceased or the hon. Gentleman lying in the heat of the moment is remote. The evidence is second-hand hearsay but it would be admitted under the provision, and rightly so.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The hon. and learned Lady makes an interesting and persuasive case on an example. Equally, she accepted that the example that I gave was one that, if it arose, would cause her some concern. I believe, however, that the Bill as drafted will have that effect.

I shall invite the House to delete clause 106. In doing so, I am saying not that the clause is valueless, but that as drafted it is unsatisfactory. If the Minister assured me that the Government will re-examine the provision, I might change my mind. However, my current intention is to vote against it, because it is likely to cause harm that will outweigh the benefits it generates.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

I rise briefly to congratulate the Government. In the field of criminal justice, that is such a rare and beautiful thing that I cannot resist the opportunity to do so. Unhappily, in that field one often has the sadness of saying that the Government attack civil liberties and the liberties of individuals either through the substantive law or through the law of evidence, which we are discussing. However, on this occasion, the Government are making a serious attempt not to disadvantage the defence but seriously to disadvantage the prosecution.

Let me expand that point in general terms. Many safeguards are built into this part of the Bill. The truth is that the judge—any judge—simply will not admit hearsay, let alone double hearsay, in circumstances in which it is unfair or likely to lead to an injustice. Because of the European convention, the provisions apply on both sides, but whereas the Crown, by reason of the forces it has at its disposal, rarely has difficulty obtaining first-hand primary evidence and will therefore be locked out by the judge if it attempts to bring in secondary or hearsay evidence, the same does not apply to the defence. A defence application to call hearsay evidence on the basis that the defence has been unable, given its best endeavours, to obtain the primary evidence is therefore much more likely to find favour with a trial judge. I say that after having prosecuted in my quite long professional life at least as many serious criminals as I have defended—I am pleased to say with almost the same rate of success.

As prosecution counsel, it causes me very considerable concern that, at the end of a case, a defendant—and, let us postulate, a serious and professional defendant—with very little by way of defence will be able to adduce evidence before the court and say that Joan will be called to say that, in a conversation that she had with Mrs. Kray, Mr. Kray said that he had done it. Of course, neither Mr. Kray nor Mrs. Kray will be available, for the very good reason that they are on the run.

At the moment, quite rightly, such evidence would be wholly and completely inadmissible. If the provisions are passed, it is extremely likely that it will be admitted and that a cast-iron case against very serious criminals will fall because of this piece of civil libertarian legislation. I suspect that that was what the Home Office and Home Secretary had in mind when they engineered the measure, and as I say, a wonderful thing it indeed is, if somewhat aberrent, given the general track record. If the provisions are passed, what we are likely to see is, I regret, injustice being done, but not to the defence.

Having congratulated the Government in that fulsome way, I shall say straight away that I shall not vote for the provisions. I shall not do so because I would not dream of voting for provisions that, if they are put into effect, will give effect to matters and measures that the Government do not intend. To that extent, I will abstain. I suspect that the provisions will be brought into effect and eventually be put into effect by the courts, and that the prosecution and the Government will find in the fullness of time, I am sorry to say, that they have scored—if I may repeat the metaphor—a spectacular own goal.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I shall be very brief, because I think that the knives come down at 4.20, which will leave four whole groups of amendments undiscussed. I think that it is an outrage that this House is permitting this Bill to go through largely undiscussed. I hope that the other place bears in mind what I have said and the procedures that we foolishly adopt in this House in considering such legislation.

There is a spurious attraction to what Mr. Marshall-Andrews said; he is an accomplished after-dinner speaker, and we are a long way before dinner, but I think that that was one of his better contributions to the art of after-dinner speaking.

I wholly accept the arguments advanced by my hon. Friend Mr. Grieve and Simon Hughes, and I ask the House to reject the provision as it is currently drafted by the Government. It comes out of the school of saloon bar legislation that says "It stands to reason, guv; somebody said that he's guilty, so he must be guilty." We should be extremely careful, because hearsay and rumour are very close relations, and if we are to start convicting people on the basis of rumour, we might as well pack up and go home.

Photo of Hilary Benn Hilary Benn Parliamentary Under-Secretary (Home Office) (Minister for Prisons and Probation)

There is a great deal to respond to and I have a very short time in which to do so, but I shall do my best.

Simon Hughes prefaced his remarks by speaking about the importance of the fundamental principle in our criminal justice system that, in the end, a case has to be proved beyond reasonable doubt before somebody can be convicted and potentially deprived of their liberty. It should not need saying, but, as he raises the issue, it would be remiss of me if I did not make it absolutely clear that none of the provisions on hearsay, which we are debating, nor any on bad character, which we will come to shortly, changes that one iota. That remains the bedrock on which our system is based.

I concur wholeheartedly with the comment made by Mr. Grieve, who admitted to the highly complex nature of the law on hearsay, and other hon. Members in the Chamber at the moment are better qualified and have much more expertise than I do. Notwithstanding that fact, I wish to say that, like the Law Commission, the Government accept that hearsay evidence is generally less satisfactory than first-hand evidence, but there may be cases where that is not so and there are other cases in which it is all that is available and should therefore be considered by the court. That is the issue with which the House has to grapple, and all hon. Members recognise that, after careful consideration, the Law Commission said that the present law was not only exceptionally complex but difficult to interpret. That is what the Bill seeks to change.

The second issue that I want to address is the difference between the inclusionary as opposed to the exclusionary approach because it will have salience in a later debate, when we shall argue, in essence, about the same principle. In effect, the relevant phrases are "admitted, but only if" as opposed to "not admitted unless". I think that I am right in saying that the hon. Member for Beaconsfield said in passing that in one sense that does not make a lot of difference, and I agree with him. So we should focus our attention on whether we have the right safeguards to cover the circumstances in which there is general agreement that hearsay material should not be admitted.

Thirdly, I agree with the argument that we should seek to trust juries in weighing all the evidence that they have before them, in reaching a judgment and deciding whether they can reach a verdict that is beyond reasonable doubt. The hon. Member for Southwark, North and Bermondsey advanced that argument and then attempted to knock it down. I shall give a practical example because it is very hard, given the complexity of the issue, for non-lawyers to understand precisely what we are talking about.

I shall refer to the celebrated Kearley case. During a police raid on a suspected drug dealer, a number of people either called at the door or telephoned the house asking for drugs. Not surprisingly in those circumstances, the dealer's clients were not willing to give statements to the police officers who opened the door. The Court of Appeal held that the prosecution was wrong to rely on that evidence because it was inadmissible hearsay. In summing up the issues in that case, however, Lord Justice Griffiths stated:

"I believe that most laymen if told that the criminal law of evidence forbade them even to consider such evidence as we are debating in this appeal would reply 'then the law is an ass'"— and I agree with him. That is the issue with which we are wrestling and which the Government are seeking to address in these clauses.

The Government's belief in the need for inclusionary reform, which is the central thrust of the proposals, is supported by the Runciman royal commission, which concluded that hearsay evidence should be admitted to a greater extent than at present, and by Sir Robin Auld, who proposed that hearsay should be generally admissible in criminal proceedings. The terms of rule are almost but not completely consistent with the Law Commission's widely supported proposal that there should be automatic admission for certain categories of evidence, with judicial discretion to admit other cogent and reliable evidence.

The final point that I want to make is that clause 99 makes it absolutely clear that such evidence will be admitted only if the relevant criteria apply. We believe that this is a sufficient safeguard and that the many proposed amendments would send out the wrong signals to the courts on how they should approach this issue.

Amendment No. 149, which was not directly addressed, would have serious implications for a swathe of evidence in our criminal courts, including the common law categories which have—

It being three and a half hours after the commencement of proceedings, Mr. Deputy Speaker put forthwith the Question necessary to dispose of business at that hour pursuant to Order [this day]

Question put, That the amendment be made:—

The House divided: Ayes 182, Noes 297.

Division number 156 Criminal Justice Bill — Clause 99 — Admissibility of Hearsay Evidence

Aye: 182 MPs

No: 297 MPs

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Question accordingly negatived.

Amendment proposed: No. 121, in page 65, line 42, leave out clause 106.—[Mr. Grieve.]

Question put, That the amendment be made:—

The House divided: Ayes 183, Noes 296.

Division number 157 Criminal Justice Bill — Clause 99 — Admissibility of Hearsay Evidence

Aye: 182 MPs

No: 296 MPs

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Question accordingly negatived.

It being three and a half hours after the commencement of proceedings, Mr. Deputy Speaker, pursuant to Order [this day] proceeded to put the Questions necessary for the disposal of the business to be concluded at that hour.